MAZZONE v. MAZZONE (2000)

In an action pursuant to RPAPL article 15, the plaintiff appeals from an order of the Supreme Court, Kings County, (Vaughan, J.), dated December 3, 1998, which denied her motion for a preliminary injunction, granted the defendant's cross motion to dismiss the complaint, and, sua sponte, imposed a sanction on her in the sum of $1,000.

ORDERED that on the court's own motion, the appellant's notice of appeal from so much of the order as imposed a sanction is treated as an application for leave to appeal, and leave to appeal is granted (see, CPLR 5701[c] );  and it is further,

ORDERED that the order is modified, on the law, by deleting the provision thereof which imposed a sanction in the sum of $1,000 on the plaintiff;  as so modified, the order is affirmed, without costs or disbursements.

 The Supreme Court properly dismissed the complaint as the plaintiff failed to plead a valid cause of action sounding in fraud.   To plead a valid cause of action sounding in fraud, the complaint must set forth all the elements of fraud including the making of material representations by the defendant (see, Garelick v. Carmel, 141 A.D.2d 501, 529 N.Y.S.2d 126).   The complaint herein did not contain any allegation that the defendant made any material representations.

 To the extent that the complaint may be read to plead a cause of action to impose a constructive trust, it is time-barred.   An action to impose a constructive trust is governed by the six-year Statute of Limitations provided by CPLR 213(1), which “commences to run upon the occurrence of the wrongful act giving rise to a duty of restitution and not from the time the facts constituting the fraud are discovered” (Mattera v. Mattera, 125 A.D.2d 555, 556-557, 509 N.Y.S.2d 831).   Here, the action was commenced more than six years after the alleged wrongful transfer of the property.

 The Supreme Court, however, improperly imposed a sanction in the sum of $1,000 on the plaintiff, as the order did not set forth the conduct which was the basis of the sanction (see, 22 NYCRR 130-1.2).

The plaintiff's remaining contentions are without merit.

MEMORANDUM BY THE COURT.